The Washington Post calls me “an influential health-care wonk at the libertarian Cato Institute,” where I am the director of health policy studies. The New Republic says I'm "Obamacare's Single Most Relentless Antagonist." The Hill says I'm one of “the 100 People to Watch.” I am the co-editor of Replacing Obamacare: The Cato Institute on Health Care Reform (Cato, 2013) and coauthor of Healthy Competition: What’s Holding Back Health Care and How to Free It (Cato, 2013). Though not a Republican, I served as a domestic policy analyst for the U.S. Senate Republican Policy Committee, advising the Senate leadership on health, education, labor, welfare, and the Second Amendment. I have appeared on ABC, CBS, CNN, CNBC, C-SPAN, Fox News Channel, and NPR. My work has been featured in The Wall Street Journal, The New York Times, USA Today, the Los Angeles Times, the New York Post, the Chicago Tribune, the Chicago Sun-Times, the San Francisco Chronicle, Huffington Post, Forum for Health Economics & Policy, Health Matrix: Journal of Law-Medicine, and the Yale Journal of Health Policy, Law, and Ethics. I've got a bachelor’s degree in American government (B.A.) from the University of Virginia, and master’s degrees in economics (M.A.) and law & economics (J.M.) from George Mason University. Click “Follow” next to my photo (above) to receive notices of some of the most important analysis of ObamaCare and beyond.

Sebelius Resignation May Create More Problems For Democrats Than It Solves

Last year, National Journal reporter Matthew Cooper waxed that despite the disastrous roll-out of HealthCare.gov, President Obama would retain Health and Human Services Secretary Kathleen Sebelius due to “a mutual affection that’s just strong enough to keep them bound together” plus “their shared love of basketball” and unspecified other “mystic chord[s] between the two lanky pols.” Well, the mystic chords weren’t enough, and Sebelius is on her way out the door. One might think this would help Democrats turn a corner on health care, but don’t count on it. President Obama’s pick to succeed Sebelius – Office of Management and Budget Director Sylvia Mathews Burwell — could face a brutal confirmation process, because she is his first and potentially only nominee to ObamaCare’s “death panel“: the Independent Payment Advisory Board. The last time senators suspected an Obama nominee of wanting to exercise IPAB-style powers over health care — i.e., Don Berwick’s ill-fated nomination to run Medicare and Medicaid — it was such a bloodbath that Democrats were afraid even to hold a vote. And Burwell would wield far more power than senators feared would fall into Berwick’s hands. By accepting Sebelius’ resignation, President Obama has given Republicans a weapon to use against vulnerable Democratic senators, and created more problems for the White House than if he had asked her just to stay put.

From one perspective, Burwell seems like a safe choice. The Senate confirmed her as OMB director by a vote of 96-0. And since Senate Democrats eliminated the filibuster for such nominations, she would need only 51 votes this time around. Currently, 55 senators caucus with the Democrats. So Senate Majority Leader Harry Reid (D-NV) could let four vulnerable Democratic senators walk, and she would still prevail.

But Burwell’s nomination is unlike any the Senate has ever considered before. Under the Patient Protection and Affordable Care Act, if the Senate does not confirm any nominees to the Act’s 15-member Independent Payment Advisory Board, then all of the Board’s powers fall to the Secretary of Health and Human Services.

And IPAB’s powers are considerable. The Board is an unconstitutional super-legislature. In some respects, its powers rival or exceed those of an entire chamber of Congress. As Diane Cohen and I explained in 2012:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers. A heretofore unreported feature of PPACA dictates that if Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.” By restricting lawmaking powers of future Congresses, PPACA thus attempts to amend the Constitution by statute.

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The Senate has never confirmed someone to a position of such power. (IPAB didn’t exist when the Senate confirmed Sebelius.)

President Obama hasn’t nominated anyone else to IPAB so far, and he’d probably be foolish to do so. Each nomination could face a Berwick-style bloodbath in the Senate. If any of his nominees somehow survived — a big “if” — the president would then have less influence over IPAB than under a scenario where the Board’s powers fell to an HHS Secretary who serves at his pleasure. So Burwell may be the only IPAB nominee we ever see from this president.

President Obama may rue the day he accepted Kathleen Sebelius’ resignation. The Washington Post reports she will “remain until her successor is confirmed.” Instead of new leadership at HHS and a fresh start with ObamaCare, then, the president could find himself with the same old leadership and a politically damaging Senate fight over IPAB in an election year. Makes you wonder who the bad manager really was.

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